In addition, if the court finds that either vessel had violated a statutory duty, that vessel has the burden of going forward with evidence to show not only that her fault probably did not cause the collision but that it could not have caused or contributed to it. The Pennsylvania, 19 Wall. 125, 136, 86 U.S. 125, 136, 22 L. Ed. 148 (1873); Boyer v. The Merry Queen, 202 F.2d 575 (3d Cir. 1953); Gilmore & Black, Law of Admiralty, § 7-5; Griffin, Collision §§ 24, 200.

Although this clause must not be read literally so as to hold an overtaking vessel liable in every situation where she does not in fact "keep out of the way", there are no extenuating circumstances here to extricate the respondent from the force of the rule. The Pilar De Larrinaga, 42 F. Supp. 648 (E.D.Pa.1942); See, The Artemis, 39 F.2d 553 (2d Cir. 1930).

The WARTENFELS clearly did not meet her burden of going forward to show that this infraction could not have been a cause of the accident even if she did violate the statute. The collision with the OHIO SUN was a direct result of her failure to observe Art. 24 of the Inland Rules of Navigation, 33 U.S.C. § 209.

III.

The respondent contends that even assuming her own negligence, the libellant did not have a proper lookout astern and therefore must also be held at fault. Specifically, the WARTENFELS alleges that the OHIO SUN violated the Inland Rules of Navigation, Art. 29, 33 U.S.C. § 221 which provides:

"Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case."

The OHIO SUN had no special watch officer on duty after 0400 on the morning of the collision, and no one on that vessel observed the WARTENFELS during the crucial time between the latter's signal to pass and its sounding of the danger signal seconds before the collision. While the captain of the OHIO SUN glanced astern periodically, he certainly was not a lookout "with no other duties". See Chamberlain v. Ward, 21 How. 548, 62 U.S. 548, 16 L. Ed. 211 (1859); Circle Line Sightseeing Yachts v. City of New York, 283 F.2d 811 (2d Cir. 1960).

The respondent relies on Stevens v. United States Lines Co., 187 F.2d 670 (1st Cir. 1951) for the proposition that a lookout astern is required. There a freighter collided into a cabin cruiser travelling in the same direction. The District Court held them each at fault and the Court of Appeals affirmed. The Trial Court found the overtaken vessel negligent due to the captain's failure to glance astern even occasionally when he knew that a much larger ocean going vessel was proceeding up the channel behind him. The case at bar is plainly distinguishable, first of all, because the captain of the OHIO SUN did glance behind periodically and secondly because the two ships here were relatively the same size, so that the danger in a passing situation would not be so great to the OHIO SUN as it was to the overtaken vessel in the case cited by the respondent. Moreover the Court in Stevens recognized explicitly that the overtaken vessel is under no duty to maintain a constant watch astern.

The other decisions cited by the respondent are not on point. They deal with the duties of a lookout once it is determined that one is required but are not helpful here where the question is whether a watch astern was demanded in the first place.

The respondent also contends that the libellant was at fault in violating the Inland Rules of Navigation, Art. 18, 33 U.S.C. § 203 which reads:

"The vessel ahead shall in no case attempt to cross the bow or crowd upon the course of the passing vessel."

While the OHIO SUN did bear slightly to port during the few minutes prior to the accident as it followed the path of the channel which itself bent slightly to port, the court has made a finding of fact that the libellant in no way crossed the bow or crowded the respondent but to the contrary that the respondent sheered across the channel into the libellant. The various lights of the OHIO SUN'S port side, which the WARTENFELS observed, indicated not that the OHIO SUN was sheering to the left but that the WARTENFELS was overtaking her.

ORDER

And now, this 8th day of February 1966, it is hereby Ordered and Decreed that judgment be entered for the libellant and against the respondent for the damages sustained by the libellant as a result of the collision on August 12, 1961 in the Houston Ship Channel. The libellant shall submit within ten days an appropriate decree for the appointment of a commissioner to determine the amount of the damages.

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.